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Should Taxpayers Be on the Hook for Sexual Reassignment Surgery?

With “transgenderism” definitively out of the closet, the question remains, “How common is transgenderism?” While early research suggests it is an infrequent occurrence, more recent studies conducted by Lynn Conway, an American academic and scholar, who underwent surgery to transition from male to female in 1968, posits that it could be as prevalent as one in every 500 to 1,000 people. Conway reports that between 800 and 1,000 operations are conducted annually in the United States and hundreds more occur in Britain, Australia and Thailand.

While the myth that transgenderism is linked to mental illness or emotional dysfunction has been tabooed, the stereotype of a transgendered inmate transitioning while in custody has been featured in several popular TV shows including “Orange is the New Black” and the Australian production of “Wentworth”.

There have been several recent cases of prison inmates suing the American government alleging that to refuse them sexual reassignment surgery is a breach of their constitutional rights to be free from cruel and unusual punishment.

The first case was brought in 2012 by Michelle Kosilek who was serving a life sentence for murdering her wife, Cheryl McCaul, in 1990 when he was known as Robert. At trial Judge Mark L. Wolf ordered the surgery finding that the State of Massachusetts’ failure to provide it violated the 8th Amendment protection against cruel and unusual punishment. However, in December 2014 the US Court of Appeal in a 3-2 ruling overturned the trial decision, finding that the trial judge erred by substituting his own opinion that the surgery was medically essential despite the lack of consensus between experts. The appeal court also rejected the trial judge’s circumvention of prison safety and security concerns post-surgery.

Kosilek had been transitioning when he entered prison and officials had already provided therapy, hormone treatment, permanent facial hair removal and female attire and personal effects.

More recently in California a judge in San Francisco ruled that Michelle-Lael Norsworthy was entitled to have the State pay for her surgery based on her diagnosis of gender dysphoria.

Ms. Norsworthy was convicted as a man of second-degree murder after a fatal bar fight. She was scheduled to have the surgery, which costs as much as $100,000, in July 2015, however, the State filed an appeal that put a hold on the operation, and subsequently, the California Board of Parole granted her parole after serving 30 years. However, that was not the end of it.

While her release from prison relieved the State of paying for the expensive surgery, Ms. Norsworthy filed a civil rights suit for damages advancing evidence of gang rape by nine male inmates in 2009 which led to her acquiring hepatitis C.

This month the lawsuit was settled with California agreeing not to appeal the San Francisco judge’s ruling that the State must fund medically necessary reassignment surgery and paying $500,000 to Ms. Norsworthy, who now lives in a California halfway house.